The Big Ten’s decision to cancel the fall football season has now become a legal controversy.
On Thursday, eight Nebraska football players filed a complaint in a Nebraska trial court arguing that the cancellation unlawfully interferes with their business expectations. The players seek a restraining order that would invalidate the Big Ten’s decision. They maintain the decision was “arbitrary and capricious” and premised on “flawed” data concerning the risk of COVID-19 to football players.
Attorney Mike Flood, who is a state senator running for re-election and who recently drafted a letter to conference commissioner Kevin Warren on behalf of parents of Nebraska players, is among the attorneys retained by the group. He told KULR and other media that an initial hearing is set for Thursday at 3 p.m. local time.
The Big Ten, which was the first major conference to announce it wasn’t playing fall football, issued a statement describing the players’ lawsuit as meritless. “We share the disappointment that some student-athletes and their families are feeling. However, this lawsuit has no merit, and we will defend the decision to protect all student-athletes as we navigate through this global pandemic. We are actively considering options to get back to competition and look forward to doing so when it is safe to play,” the conference said.
The decision to cancel, which was followed the same day by the Pac-12, has left a massive schism between those leagues and the three other Power 5conferences (the Big 12, ACC and SEC) that are still playing. As the commercial engine of college football pushes forward—the four-team playoff, for example, is still scheduled to happen at the end of the year—many predict recruiting and financial blowback for the leagues that don’t play.
For individual athletes, the decision could also have huge ramifications. Though they won’t lose a year of eligibility, most athletes won’t be allowed to transfer and play immediately at another school this fall. Not playing may have a significant impact on player development and future earnings. After his junior year, for example, LSU quarterback Joe Burrow was barely on the radar of NFL teams. He won a national title in his senior year, became the first pick in the NFL draft and recently signed a $36.19 million contract.
Nixing fall football has been significantly more controversial in the Big Ten than in the Pac-12, which was fully transparent about its medical research, the factors in its decision and the process leading up to it. The Big Ten has been more secretive, prompting protests from parents, criticism from coaches and even some schools briefly speaking publicly about scheduling their own games outside of the conference.
The players’ complaint faces similar hurdles to the ones discussed by Sportico in regard to Flood’s warning that parents would sue on Aug. 24 if the Big Ten didn’t turn over records (as of this writing, there is no indication the conference has turned over records, and the parents haven’t sued).
The first hurdle is whether the players have “standing” to sue the Big Ten. If they lack standing, the lawsuit would be dismissed.
The key question with standing is whether the player plaintiffs possess a legitimate legal interest in the Big Ten’s decision. Legal interest should be distinguished from an emotional or mere personal interest. The fact that the players disagree with the conference doesn’t, by itself, give them standing—especially since the conference’s decisions are made according to conference bylaws. Those bylaws do not refer to players having a right to vote on conference decisions. Put more bluntly, the scheduling of games is not a player decision.
The players nonetheless hope to convince the assigned judge that they have standing. A key reason is how the cancellation impacts their careers. This is also speculative: The players are students, not professionals, and their odds of becoming professional football players is uncertain. The players would have a more compelling argument for standing if they could lose their university scholarships on account of canceled games. Their scholarships, however, remain intact.
If the players manage to establish standing, they would still need to overcome arguments by the Big Ten that the case should be dismissed as legally invalid. The players assert that the conference’s council—which consists of the presidents and chancellors of the 14 member schools—“did not actually vote on whether to cancel the 2020 fall football season.” This assertion conflicts with public statements by Warren. Even if the conference failed to properly vote, the players might not be the proper plaintiffs to enforce such a claim: Again, they don’t have a vote. A member school that wished to play would seem like a more viable plaintiff.
The complaint argues that the players have not only legitimate business interests in potentially playing professionally but also opportunities to market themselves. To that end, the complaint notes that Nebraska Gov. Pete Ricketts recently signed into law the Nebraska Fair Pay to Play Act, which will allow college athletes to sign endorsement deals and hire agents.
There is a timing problem for the players: The Act doesn’t go into effect until 2023. By then, some of the players will no longer be enrolled. Even among those that are still Cornhuskers, it’s not clear how much, if any, marketability they would have to take advantage of their NIL. Possible damages would be difficult to forecast.
Despite these hurdles, the case could have traction.
“The legal theories being advanced in this state court lawsuit,” attorney Tom Mars contends, “are as novel and creative as anything I’ve ever seen. That said, there’s a first time for everything. In any event, I hope this kind of pressure results in all Big Ten football players being given the opportunity to pursue their dreams.” Mars is leading an effort to force the conference’s schools to reveal records and to restart college football through a waiver plan.
Mars also points out the assigned judge, Judge Susan Strong, would be subject to a retention election in 2024 should she wish to continue to serve. Elected judges are sometimes sympathetic to local interests, though it’s unknown if that factor will prove relevant here.
The players hope to preempt a likely attempt by the Big Ten to remove (transfer) the case to federal court by expressly stating they do not seek and would not accept damages of $75,000 or more. Federal court jurisdiction would hinge in part on whether the case is worth at least $75,000.
Should the case advance, the players could potentially obtain records and force leaders of Big Ten schools to provide sworn testimony. But first things first.